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Do v. Commissioner of Motor Vehicles

Supreme Court of Connecticut

February 12, 2019

ANGEL HUANG DO
v.
COMMISSIONEROF MOTOR VEHICLES

          Argued December 20, 2017

         Procedural History

         Appeal from the decision of the defendant suspending the plaintiff's motor vehicle operator's license, brought to the Superior Court in the judicial district of Ansonia-Milford and transferred to the judicial district of New Britain, where the case was tried to the court, Schuman, J.; judgment dismissing the appeal in part and remanding for the resolution of a disputed factual issue, and the plaintiff appealed to the Appellate Court, Gruendel and Prescott, Js., with Bear, J., dissenting, which reversed the trial court's judgment and remanded the case with direction to render judgment sustaining the plaintiff's appeal, and the defendant, on the granting of certification, appealed to this court. Reversed; judgment directed.

          Drew S. Graham, assistant attorney general, with whom, on the brief, was George Jepsen, former attorney general, for the appellant (defendant).

          Chet L. Jackson, for the appellee (plaintiff).

          Palmer, McDonald, Robinson, Mullins, Kahn and Vertefeuille, Js. [*]

          OPINION

          PALMER, J.

         Under General Statutes § 14-227b (c), [1]anytime someone is arrested for operating a motor vehicle while under the influence of drugs or intoxicating liquor and refuses to submit to or fails a blood, breath or urine test, the arresting officer must, among other things, prepare a report of the incident for the Department of Motor Vehicles (department), and, pursuant to § 14-227b-19 of the Regulations of Connecticut State Agencies, [2] that report is admissible at a hearing to suspend an operator's license conducted in accordance with § 14-227b (g), [3] as long as it conforms to the requirements of § 14-227b (c). The defendant, the Commissioner of Motor Vehicles (commissioner), suspended the operator's license of the plaintiff, Angel Huang Do, for ninety days following a hearing at which the hearing officer relied on such a report, which consisted of an A-44 form, [4] a four page police investigation report, and the results of the plaintiff's breath analysis tests. The plaintiff appealed to the Superior Court from the decision of the commissioner, claiming, inter alia, that this report, which had been admitted into evidence by the hearing officer as a single exhibit, [5] was unreliable, even though it complied with § 14-227b (c), due to certain inconsistencies and errors contained therein. The plaintiff asserted, therefore, that the hearing officer had abused his discretion by admitting the exhibit into evidence. The trial court rejected the plaintiff's claim but remanded the case to the hearing officer for an articulation of the type of vehicle the plaintiff was driving at the time of her arrest. The plaintiff appealed from the trial court's judgment to the Appellate Court which, in a two to one decision, reversed, concluding that the inconsistencies and errors in the exhibit rendered it so unreliable that its admission violated principles of fundamental fairness. See Do v. Commissioner of Motor Vehicles, 164 Conn.App. 616, 618-19, 138 A.3d 359 (2016). Because there was no other evidence in the record to support the hearing officer's findings, the Appellate Court sustained the plaintiff's appeal. Id., 619. We granted the commissioner's petition for certification to appeal, limited to the issue of whether the Appellate Court properly determined that principles of fundamental fairness required the preclusion of the exhibit as unreliable even though it complied with § 14-227b (c). See Do v. Commissioner of Motor Vehicles, 322 Conn. 901, 138 A.3d 931 (2016). Because we agree with the commissioner that the hearing officer did not abuse his discretion in admitting and relying on the exhibit, we reverse the judgment of the Appellate Court.[6]

         The record reveals the following facts and procedural history. On April 24, 2014, at approximately midnight, desk personnel notified State Trooper Troy M. Biggs that a 911 caller had described a white Mercedes-Benz driving erratically on Route 63 near Round Hill Road in the town of Bethany. Shortly thereafter, Biggs spotted the Mercedes-Benz traveling northbound on Route 63 and proceeded to follow it. After Biggs observed the vehicle swerving and crossing the center line, he activated his emergency lights and pulled the driver over. Biggs identified the plaintiff as the driver of the vehicle from her Connecticut motor vehicle operator's license. While questioning the plaintiff, Biggs detected a strong odor of alcohol on her breath and inside the car. The plaintiff also admitted to having consumed two alcoholic beverages prior to leaving her home.

         On the basis of this information, Biggs asked the plaintiff to exit the vehicle and to perform three standardized field sobriety tests, all of which the plaintiff failed.[7] At 12:30 a.m., Biggs placed the plaintiff under arrest for operating a motor vehicle under the influence of intoxicating liquor or drugs and transported her to the Bethany state police barracks, where she was advised of her Miranda[8] rights. She then agreed to submit to two breath analysis tests, the results of which indicated a blood alcohol content of 0.1184 and 0.1186 percent, respectively. The plaintiff subsequently was formally charged with operating a motor vehicle under the influence of intoxicating liquor or drugs in violation of General Statutes (Supp. 2014) § 14-227a (a).[9]

         On April 26, 2014, in accordance with § 14-227b (c), Biggs transmitted a copy of the exhibit, which, as we previously indicated, consisted of an A-44 form, a four page police investigation report, and the results of the plaintiff's breath analysis tests, to the department. Each page of the exhibit was subscribed and sworn to electronically by Biggs under penalty of false statement. Biggs' supervising officer, Ryan M. Hennessey, administered an oath to Biggs and signed the exhibit as well.

         On May 14, 2014, the commissioner notified the plaintiff that her license was being suspended for a period of ninety days. See General Statutes § 14-227b (e) (1).[10]The plaintiff availed herself of her right to contest the suspension at a hearing before an administrative hearing officer designated by the commissioner. Under § 14-227b (g), [11] such hearings are strictly ‘‘limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both; (2) was such person placed under arrest; (3) did such person . . . submit to [a] test or analysis, commenced within two hours of the time of operation, [which] . . . indicated that such person had an elevated blood alcohol content; and (4) was such person operating the motor vehicle.'' If the hearing officer finds affirmatively on all four issues, the hearing officer must uphold the commissioner's suspension of the person's license. See General Statutes § 14-227b (h).

         Prior to the hearing, the commissioner notified the plaintiff that the exhibit would be offered in evidence pursuant to § 14-227b (c). At the hearing, the plaintiff objected to the admission of the exhibit on the ground that it was unreliable due to the following internal discrepancies: (1) the A-44 form states that, at the time of her arrest, the plaintiff was driving a 2007 Audi A4 with Massachusetts license plates whereas the investigation report states that the plaintiff was driving a 2006 Mercedes-Benz S28 with Connecticut license plates; (2) after Biggs had subscribed and sworn to the information contained in the A-44 form, Biggs' supervising officer, Hennessey, altered the first page of that form by crossing out ‘‘04/23/2014'' as the date of the incident and writing in ‘‘04/24/14'';[12] (3) Hennessy also crossed out the name ‘‘Helt, David'' as a person who witnessed the plaintiff's refusal to perform a breath analysis test; and (4) page two of the investigation report, in the prearrest screening section, states that the plaintiff informed Biggs that she was wearing contact lenses whereas the summary of the plaintiff's horizontal gaze nystagmus test results in the same report states that the plaintiff performed that test ‘‘with and without her glasses on.'' On the basis of these alleged discrepancies, the plaintiff argued that the exhibit did not meet the admissibility requirements of § 14-227b (c) because it could not be determined from the exhibit which vehicle the plaintiff was driving on the night of the incident and because the exhibit was not properly subscribed and sworn to because of the alterations made by Hennessey. In response, the department argued that the discrepancies identified by the plaintiff were mere scrivener's errors that went solely to the weight to be ascribed to the exhibit and not to its admissibility. The hearing officer agreed with the department and admitted the exhibit. The hearing officer advised the plaintiff, however, that he would take into account her arguments regarding the several errors and discrepancies in the exhibit in deciding whether the commissioner had satisfied each of the four requirements specified in § 14-227b (g) for suspending the plaintiff's operator's license. The plaintiff did not testify or otherwise present any evidence at the hearing.

         On May 30, 2014, the hearing officer issued the following findings: (1) ‘‘The police officer had probable cause to arrest the [plaintiff] for a violation specified in [§] 14-227b of the . . . General Statutes''; (2) ‘‘[t]he [plaintiff] was placed under arrest''; (3) ‘‘[t]he [plaintiff] submitted to the test or analysis and the results indicated a [blood alcohol content] of .08 [percent] or more''; and (4) ‘‘[the plaintiff] was operating the motor vehicle.'' Consistent with these findings, the commissioner ordered the suspension of the plaintiff's license for a period of ninety days.

         The plaintiff thereafter filed a petition for reconsideration in which she argued that the hearing officer could not properly have found affirmatively on the fourth issue-namely, that the plaintiff was operating the motor vehicle-because the exhibit indicated that the plaintiff was driving two different vehicles at the time of the incident. The plaintiff further argued that the A-44 form was inadmissible due to the alterations that Hennessey had made to it after Biggs had subscribed and sworn to the information contained therein. The commissioner denied the petition for reconsideration.

         Pursuant to General Statutes § 4-183, [13] the plaintiff appealed from the commissioner's decision to the Superior Court, claiming that the hearing officer had abused his discretion in admitting the exhibit into evidence and that, even if the exhibit had been properly admitted, there was insufficient evidence to support the hearing officer's findings. The trial court rejected the plaintiff's claims, concluding that the exhibit was properly admitted because it complied with the requirements of § 14-227b (c) and, furthermore, that the contents of the exhibit supported the hearing officer's findings. Specifically, the trial court stated: ‘‘In this case, the A-44 [form] contains the April 26, 2014 electronic sworn signature under penalty of false statement of [Biggs] as the arresting officer. The signature box refers to the report itself and any attachments thereto. The attached investigation report contains the April 26, 2014 electronic sworn signature of [Biggs] as the investigator. These reports thus comply with the statute and provided sufficient reliability to justify their admission at the license suspension hearing in this case. See General Statutes § 14-227b (c) (the [c]ommissioner . . . may accept a police report under this subsection that is prepared and transmitted as an electronic record, including electronic signature or signatures).

         ‘‘That reliability is not negated by the plaintiff's claims of discrepancies in the date of arrest and the identity of the motor vehicle that the plaintiff drove. The plaintiff raised both these claims before the hearing officer, thus giving the hearing officer an opportunity to consider them and exercise his discretion concerning the admis-sibility of the report.

         ‘‘Under the applicable abuse of discretion standard, no abuse of discretion occurred here. . . . There is no dispute that the motor vehicle stop took place shortly after midnight on April 24, 2014. Page one of the A-44 [form] shows a typewritten but crossed out notation of the incident date as 04/23/2014. In handwriting, the date of 04/24/14 is added with initials that the commissioner concedes are those of . . . Hennessey, who . . . administered the oath but was not the sworn, arresting officer. The [exhibit], therefore, does contain this amount of unsworn information, which was improper. However, pages one and two of the A-44 [form] contain four references to the arrest and breath tests taking place in the early morning hours of 04/24/2014. The investigation report then makes six references to the incident and investigation taking place on April 24. Under these circumstances, the hearing officer could reasonably have concluded that the initial notation of 04/23/2014 was a scrivener's error due to fact that the arrest took place shortly after midnight and that this error did not negate the overall reliability of the [exhibit].

         ‘‘The same is true of the discrepancy with regard to the motor vehicle in question. Page one of the A-44 [form] lists the motor vehicle as a 2007 Audi with a Massachusetts registration. In the Property section of the investigation report, however, the motor vehicle is identified as a white 2006 Mercedes-Benz with Connecticut registration 344-ZBO. [Likewise] [t]he narrative [portion] of the [investigation] report states: A 911 caller described the vehicle as a white Mercedes-Benz bearing CT registration 344-ZBO. I observed this vehicle traveling northbound . . . . I activated my overhead emergency strobe lights, sirens and wig-wag headlights. The vehicle pulled over . . . . I never lost sight of the vehicle from my initial observation to the stop. Although the [exhibit] thus contain[s] conflicting evidence concerning the motor vehicle that the plaintiff operated, that conflict does not negate the overall reliability of the [exhibit], which otherwise meets the statutory and regulatory criteria. Rather, the conflict simply creates a fact or credibility issue for the hearing officer to resolve.'' (Citations ...


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